United States Court of Appeals

For the First Circuit

No. 99-1162

No. 99-1355

DEBRA McCANN, Personally, and as Mother and

Next Friend of Jillian McCann and Jonathan McCann,

Plaintiffs, Appellees/Cross-Appellants,

v.

WAL-MART STORES, INC.,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

John W. McCarthy with whom Rudman & Winchell, LLC was on

consolidated brief for defendant.

Samuel W. Lanham, Jr. with whom Cuddy & Lanham was on

consolidated brief for plaintiffs.
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April 14, 2000

BOUDIN, Circuit Judge. This case involves a claim for

false imprisonment. On December 11, 1996, Debra McCann and two

of her children--Jillian, then 16, and Jonathan, then 12--were

shopping at the Wal-Mart store in Bangor, Maine. After they

returned a Christmas tree and exchanged a CD player, Jonathan

went to the toy section and Jillian and Debra McCann went to

shop in other areas of the store. After approximately an hour

and a half, the McCanns went to a register and paid for their

purchases. One of their receipts was time stamped at 10:10 p.m.

As the McCanns were leaving the store, two Wal-Mart

employees, Jean Taylor and Karla Hughes, stepped out in front of

the McCanns' shopping cart, blocking their path to the exit.

Taylor may have actually put her hand on the cart. The

employees told Debra McCann that the children were not allowed

in the store because they had been caught stealing on a prior

occasion. In fact, the employees were mistaken; the son of a

different family had been caught shoplifting in the store about

two weeks before, and Taylor and Hughes confused the two

families.
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Despite Debra McCann's protestations, Taylor said that

they had the records, that the police were being called, and

that the McCanns "had to go with her." Debra McCann testified

that she did not resist Taylor's direction because she believed

that she had to go with Taylor and that the police were coming.

Taylor and Hughes then brought the McCanns past the registers in

the store to an area near the store exit. Taylor stood near the

McCanns while Hughes purportedly went to call the police.

During this time, Debra McCann tried to show Taylor her

identification, but Taylor refused to look at it.

 After a few minutes, Hughes returned and switched

places with Taylor. Debra McCann told Hughes that she had proof

of her identity and that there must be some proof about the

identity of the children who had been caught stealing. Hughes

then went up to Jonathan, pointed her finger at him, and said

that he had been caught stealing two weeks earlier. Jonathan

began to cry and denied the accusation. At some point around

this time Jonathan said that he needed to use the bathroom and

Hughes told him he could not go. At no time during this initial

hour or so did the Wal-Mart employees tell the McCanns that they

could leave. 

Although Wal-Mart's employees had said they were

calling the police, they actually called a store security
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officer who would be able to identify the earlier shoplifter.

Eventually, the security officer, Rhonda Bickmore, arrived at

the store and informed Hughes that the McCanns were not the

family whose son had been caught shoplifting. Hughes then

acknowledged her mistake to the McCanns, and the McCanns left

the store at approximately 11:15 p.m. In due course, the

McCanns brought suit against Wal-Mart for false imprisonment (a

defamation claim was also made but was rejected by the jury).

The jury awarded the McCanns $20,000 in compensatory

damages on their claim that they were falsely imprisoned in the

Wal-Mart store by Wal-Mart employees. Wal-Mart has now appealed

the district court's denial of its post-judgment motions for

judgment as a matter of law and for a new trial pursuant to Fed.

R. Civ. P. 50(b) and 59, respectively, arguing that the McCanns

did not prove false imprisonment under Maine law and that the

court's jury instructions on false imprisonment were in error.

The McCanns have cross-appealed from the district court's pretrial dismissal of their claim for punitive damages.

Both of Wal-Mart's claims of error depend on the proper

elements of the tort of false imprisonment. Although nuances

vary from state to state, the gist of the common law tort is

conduct by the actor which is intended to, and does in fact,

"confine" another "within boundaries fixed by the actor" where,
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in addition, the victim is either "conscious of the confinement

or is harmed by it." Restatement (Second), Torts § 35 (1965).

The few Maine cases on point contain no comprehensive

definition, see Knowlton v. Ross, 95 A. 281 (Me. 1915);

Whittaker v. Sanford, 85 A. 399 (Me. 1912), and the district

court's instructions (to which we will return) seem to have been

drawn from the Restatement.

While "confinement" can be imposed by physical barriers

or physical force, much less will do--although how much less

becomes cloudy at the margins. It is generally settled that

mere threats of physical force can suffice, Restatement, supra,

§ 40; and it is also settled--although there is no Maine case on

point--that the threats may be implicit as well as explicit, see

id. cmt. a; 32 Am. Jur. 2d False Imprisonment § 18 (1995)

(collecting cases), and that confinement can also be based on a

false assertion of legal authority to confine. Restatement,

supra, § 41. Indeed, the Restatement provides that confinement

may occur by other unspecified means of "duress." Id. § 40A. 

Against this background, we examine Wal-Mart's claim

that the evidence was insufficient, taking the facts in the

light most favorable to the McCanns, drawing reasonable

inferences in their favor, and assuming that the jury resolved

credibility issues consistent with the verdict. See Gibson v.
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City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994); Sanchez v.

Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). Using

this standard, we think that a reasonable jury could conclude

that Wal-Mart's employees intended to "confine" the McCanns

"within boundaries fixed by" Wal-Mart, that the employees' acts

did result in such a confinement, and that the McCanns were

conscious of the confinement.

The evidence, taken favorably to the McCanns, showed

that Wal-Mart employees stopped the McCanns as they were seeking

to exit the store, said that the children were not allowed in

the store, told the McCanns that they had to come with the WalMart employees and that Wal-Mart was calling the police, and

then stood guard over the McCanns while waiting for a security

guard to arrive. The direction to the McCanns, the reference to

the police, and the continued presence of the Wal-Mart employees

(who at one point told Jonathan McCann that he could not leave

to go to the bathroom) were enough to induce reasonable people

to believe either that they would be restrained physically if

they sought to leave, or that the store was claiming lawful

authority to confine them until the police arrived, or both.

Wal-Mart asserts that under Maine law, the jury had to

find "actual, physical restraint," a phrase it takes from

Knowlton, 95 A. at 283; see also Whittaker, 85 A. at 402. While
1Although the distinction may seem a fine one, it is well

settled that a threat to confine at a future time, even if done

to extract payment, is not itself false imprisonment. See

Restatement, supra, § 41 cmt. e.

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there is no complete definition of false imprisonment by Maine's

highest court, this is a good example of taking language out of

context. In Knowlton, the wife of a man who owed a hotel for

past bills entered the hotel office and was allegedly told that

she would go to jail if she did not pay the bill; after

discussion, she gave the hotel a diamond ring as security for

the bill. She later won a verdict for false imprisonment

against the hotel, which the Maine Supreme Judicial Court then

overturned on the ground that the evidence was insufficient.

While a police officer was in the room and Mrs.

Knowlton said she thought that the door was locked, the SJC

found that the plaintiff had not been confined by the

defendants. The court noted that the defendants did not ask

Mrs. Knowlton into the room (another guest had sent for her),

did not touch her, and did not tell her she could not leave.

The court also said that any threat of jail to Mrs. Knowlton was

only "evidence of an intention to imprison at some future time."

Knowlton, 95 A. at 283.1 In context, the reference to the

necessity of "actual, physical restraint" is best understood as
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a reminder that a plaintiff must be actually confined--which

Mrs. Knowlton was not.

Taking too literally the phrase "actual, physical

restraint" would put Maine law broadly at odds with not only the

Restatement but with a practically uniform body of common law in

other states that accepts the mere threat of physical force, or

a claim of lawful authority to restrain, as enough to satisfy

the confinement requirement for false imprisonment (assuming

always that the victim submits). It is true that in a diversity

case, we are bound by Maine law, as Wal-Mart reminds us; but we

are not required to treat a descriptive phrase as a general rule

or attribute to elderly Maine cases an entirely improbable

breadth.

More interesting is Wal-Mart's claim that the

instructions were inadequate. The district court largely

borrowed the Restatement formulation by telling the jury that it

must find the following:

One, that the defendant acted

intending to confine the plaintiffs within

boundaries fixed by the defendant; two, that

the acts of the defendant directly or

indirectly resulted in such a confinement of

the plaintiffs; and third, the plaintiffs

were conscious of the confinement or were

harmed by it.

The court added that the jury could find for the McCanns if it

found that "the plaintiffs reasonably believed they were not
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permitted to leave the store," and that the plaintiffs did not

have to prove that "such restraint was accomplished through

actual physical force against their bodies."

In assailing the instructions, Wal-Mart repeats its

claim, which we have already rejected, that the district court

should have charged that "actual, physical restraint" is

required to make out confinement. A somewhat different claim by

Wal-Mart, citing Whittaker, 85 A. at 402, is that the district

court's instruction was defective because it did not tell the

jury that the restraint must be a physical and not merely a

moral influence, and that influencing or convincing another to

stay is not actual physical restraint. In substance, Wal-Mart

wanted a description of what was not confinement.

We think it is at least arguable that, if a proper

instruction were tendered, it might be appropriate or even

obligatory (the latter is a nice point that we do not decide) to

make clear to the jury that there are outer boundaries to the

confinement concept and that a personal plea by the defendant to

remain or the defendant's invocation of "moral obligation" alone

would not be sufficient to inflict a "confinement." There might

be special justification for such a clarification in a case in

which the evidence was open to that interpretation. 
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However, in this case, Wal-Mart did not offer a proper

instruction: in arguing for a different instruction, it said to

the district court that the restraint "must be physical and not

merely a moral influence," implicating Wal-Mart's incorrect view

that actual physical restraint was required; and its further

statement that "[i]nfluencing or convincing another to remain in

place is not actual physical restraint" has the same fault and

is also open to the criticism that "[i]nfluencing or convincing"

is itself a misleading phrase, at least as presented by WalMart, because one could influence or convince by threats of

force or assertions of lawful authority, which do or can

constitute false imprisonment. In short, Wal-Mart did not offer

a proper instruction.

It is well-settled that a district court is not

required to rewrite an improper instruction to capture a kernel

that may have some validity; it is counsel's job to present an

unimpeachable instruction. See Parker v. City of Nashua, 76

F.3d 9, 12 (1st Cir. 1996). Wal-Mart was not faced with an allor-nothing choice: it could have pressed for its actual

physical restraint instruction and also tendered an alternative

instruction framed so as to make clear that, for example, mere

moral suasion is not sufficient. Since it did not do the

latter, we are freed from the chore of deciding in the abstract
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whether and when such a limiting instruction would be

appropriate.

Finally, the McCanns cross-appeal from the district

court's pre-trial dismissal of their claim for punitive damages.

The precedents say that punitive damages can only be awarded for

tortious conduct where the defendant acts with malice. Tuttle

v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). Under Maine law,

malice can be express, as when the defendant is motivated by ill

will toward the plaintiff, or implied, where the defendant's

actions are "outrageous" and not merely reckless or negligent.

Id.

In this case, the McCanns contend that Hughes's refusal

to permit Jonathan to use the bathroom was sufficiently

outrageous to support a claim for punitive damages. The

McCann's testimony was simply that Jonathan said once that he

needed to use the bathroom and Hughes told him he could not. At

that point, the issue was dropped and neither Jonathan nor his

mother said another word to the Wal-Mart employees about it.

While we think it was foolish for Hughes to tell the 12-year-old

that he could not go to the bathroom, the denial was not

"outrageous" given the failure to press the request. We can

imagine circumstances where a refusal to allow such a bathroom

visit would be outrageous. 
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The McCanns insist that the refusal must be considered

in conjunction with other facts, including an asserted violation

by Wal-Mart of its own policy of asking prior shoplifters to

leave the store rather than detaining them, Hughes's action of

pointing her finger at Jonathan while accusing him of stealing,

and her failure to clear up the McCanns' identity at an earlier

stage. Whether taken separately or together, these actions may

be culpable but are short enough of "outrageous" to permit

actual but not punitive damages. To the extent extra harm was

done to Jonathan, the jury had no difficulty drawing this

distinction; it awarded him $10,000 while awarding his mother

and sister only $5,000 each.

Affirmed.